State v. LewisState v. Lewis
TEODOSIO, Judge.
{1} Appellant, Tyree Lewis, appeals from his conviction for unlawful sexual conduct with a minor in the Summit County Court of Common Pleas. This Court affirms.
I.
{2} The victim‘s mother (“Y.F.“) was in an on-and-off relationship with Mr. Lewis through the years. The victim (“K.F.“) is Y.F.‘s daughter, who by all accounts was a troubled teenager residing at different homes during different stretches of time, including Y.F.‘s home, her grandmother‘s home, and then her father‘s home in Arizona. K.F. is 22 years younger than Mr. Lewis and would sometimes babysit for him while he was at work. According to Y.F., she suspected Mr. Lewis was talking to other women, so she went through his cell phone. She discovered various messages to other women, but also found some inappropriate and flirtatious messages between K.F. and Mr. Lewis. Y.F. then used the phone to send more messages to K.F., all while pretending to be Mr. Lewis. She soon learned that K.F. had performed fellatio on Mr.
{3} Y.F. then met up with Mr. Lewis in his parked vehicle in the Stow Walmart parking lot and hid a cell phone in her wig to record their conversation. In the audio recording, which was later played for the jury and admitted into evidence at trial, Y.F. questioned Mr. Lewis about the incident where K.F. was “sucking [his] d**k.” Mr. Lewis was hesitant to say much at first and expressed concerns about Y.F. possibly wearing a wire to set him up. She convinced him otherwise though, and he eventually admitted to the fellatio incident and to one of the hand job incidents. He explained: “I never ever asked her to suck my d**k. To me, that s**t was nasty and gross. I‘m not saying the, the hand job didn‘t happen. I‘m not saying that that‘s not gross, but I never ever wanted, wanted that.” He claimed K.F. joined him in his bed one night after he had been out drinking, straddled him, and said, “Tyree, do you want me to put it in my mouth?” He continued: “Before I had a chance to say no, the next thing I know she was doing it. I never asked her to do it.” When Y.F. asked why he did not just push a 15-year-old off of him, he explained, “I was a little drunk * * * [I]t was bad judgment. I could have.” Although he continued to blame K.F. for the incident, Mr. Lewis nonetheless admitted in the recording, “I‘m not saying I was right. I‘m wrong. I know I‘m wrong. I know I‘m wrong. I know I‘m wrong. I know I‘m wrong.” Y.F. later provided the audio recording to the police.
{4} Following their investigation, the police arrested Mr. Lewis for the fellatio incident and charged him with unlawful sexual conduct with a minor, under
{5} Mr. Lewis now appeals from his conviction and raises three assignments of error for this Court‘s review.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR WHEN IT PERMITTED THE INTRODUCTION BY THE STATE OF OTHER CRIMES, WRONGS, OR ACTS TO SHOW PROOF OF APPELLANT‘S CHARACTER IN VIOLATION OF [EVID.R.] 404(B).
{6} In his first assignment of error, Mr. Lewis argues that the trial court erred in admitting other-acts evidence to show proof of his character, in violation of
{7} “A hallmark of the American criminal justice system is the principle that proof that the accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused‘s propensity or inclination to commit crime.” State v. Curry, 43 Ohio St.2d 66, 68 (1975). The admissibility of other-acts evidence is carefully limited
{8} The Supreme Court of Ohio previously set forth a three-part analysis for determining the admissibility of other-acts evidence:
to be admissible, (1) the evidence must be relevant,
Evid.R. 401 , (2) the evidence cannot be presented to prove a person‘s character to show conduct in conformity therewith but must instead be presented for a legitimate other purpose,Evid.R. 404(B) , and (3) the probative value of the evidence cannot be substantially outweighed by the danger of unfair prejudice,Evid.R. 403 .
State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 20. More recently though, the high court issued two decisions in State v. Hartman and State v. Smith, “to help clear up some of the confusion that exists regarding the use of other-acts evidence” and to “provide trial courts with a road map for analyzing the admission of other-acts evidence * * *.” State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, ¶ 19. See also State v. Smith, 162 Ohio St.3d 353, 2020-Ohio-4441, ¶ 37.
{9} Courts are precluded from admitting improper character evidence under
{10} Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
{11} The analysis does not end there though, as
{12} In the case sub judice, defense counsel made an oral motion in limine during a pretrial status conference and argued to exclude any testimony that K.F. gave Mr. Lewis hand jobs on two occasions prior to the fellatio incident. The prosecutor agreed that Mr. Lewis was not charged with receiving hand jobs from K.F., but argued that “they go to explain the progression and how it went from a stepfather-stepdaughter relationship to his penis was in her mouth.” The prosecutor claimed the victim was groomed by Mr. Lewis and it was “absolutely necessary and vital for the jury to hear each of those small steps that led to that giant leap.” The trial court stated it was “inclined to allow it[,]” but took the matter under advisement. Defense counsel raised the issue again at the outset of trial, and the prosecutor argued that the hand jobs would be offered to show a “continuing course of conduct” and “the process [Mr. Lewis] used to groom [K.F.] * * * .” He explained:
It started with all the classic grooming stuff: The special favors, treatment, allowing to bend the rules, befriending, going kind of past being a parent, more of a friend, and then physical touching. Ultimately, the * * * two hand jobs, and then ultimately a blow job * * * It‘s quite a jump for the jurors to hear: Well, this stepparent, this man of the house, all of a sudden gets a blow job from this girl. We need to fill them in on the steps.
The trial court ruled to admit the evidence over the objection, noting it was the court‘s understanding that the evidence was being offered “on the issue of motive, * * * course of conduct, absence of mistake, but primarily on motive to show the increased contact and/or grooming” of the victim.
{13} The other-acts evidence was first introduced when Y.F. testified that she learned K.F. had given Mr. Lewis two hand jobs in the past. The trial court immediately interjected and explained to the jury that the “testimony regarding events leading up to the oral sex” was not being
{14} K.F. also testified about the two hand job incidents. She testified that she was in her sister‘s bedroom when Mr. Lewis showed up and eventually asked her for a “favor” as he was leaving. He purportedly struggled for several minutes to find the words to ask her something, but eventually took her hand and placed it on the outside of his pants, over his penis. He explained to her, “I was thinking I could, like, pay you to give me a hand job[,]” but K.F. declined the illicit offer. Mr. Lewis then warned her that he would tell her mother about her girlfriend often spending the night in the house, which was against her mother‘s rules, so K.F. testified that she “complied.” Mr. Lewis lay down on the bed, pulled out his penis, and led K.F.‘s hand to it. K.F. proceeded to give him a hand job, which she described as “[p]utting [her] hand on his penis and rubbing it until he ejaculate[d].” When K.F. was cleaning up afterward, Mr. Lewis told her he would get her the money later. A few days later, Mr. Lewis apologized to K.F. and said it would not happen again. According to K.F., the second incident occurred at a time when the parents of her girlfriend were getting divorced. Mr. Lewis suggested that K.F. buy her girlfriend some flowers. When K.F. explained that she did not have any money, Mr. Lewis proposed, “Maybe we can set up a situation like last time.” According to K.F., Mr. Lewis then grabbed her hand and led it to his penis. She
{15} The trial court determined that the other-acts evidence was admissible because it demonstrated Mr. Lewis’ motive, course of conduct, and absence of mistake, but only informed the jury that it was being introduced to show motive. “Motive evidence establishes that the accused had a specific reason to commit a crime.” Hartman at ¶ 48. Evidence of the two hand jobs did not reveal a specific reason for Mr. Lewis to later engage in fellatio with K.F., however, and thus did not provide evidence of any motive to commit unlawful sexual conduct with a minor beyond that which can be inferred from the commission of the crime itself. See Hartman at ¶ 49, citing State v. Curry, 43 Ohio St.2d 66, 71 (1975) (“A person commits or attempts to commit statutory rape for the obvious motive of sexual gratification. Since motive cannot be deemed to have been a material issue at appellee‘s trial, ‘other acts’ testimony was not admissible to prove this matter.“). “[I]n most cases of this type, there is no motive beyond that implicit in the commission of the offense itself.” Hartman at ¶ 50 (concerning the offense of rape). See also State v. Sabo, 5th Dist. Delaware No. 18 CAA 10 0080, 2019-Ohio-3072, ¶¶ 27-28 (stating the motive and intent of sexual gratification was not a material issue as it was apparent from the charges of gross sexual imposition). Mr. Lewis’ motive in receiving fellatio from K.F. was undoubtedly sexual gratification, which was not a material issue in dispute. We therefore disagree with the trial court‘s determination that the other-acts evidence was admissible for the purpose of establishing motive.
{16} Nevertheless, an appellate court shall affirm a trial court‘s judgment that is legally correct on other grounds, that is, one that achieves the right result for the wrong reason, because
{17} Here, the defense theory at trial was that no crime occurred. Mr. Lewis’ defense was instead that K.F. was both a liar and a manipulator who surreptitiously performed fellatio on him while he was asleep. Mr. Lewis testified in his own defense that K.F. joined him in his bed one night after he arrived home from a night out drinking. According to Mr. Lewis, he was lying on his side and fell asleep while talking to K.F. She then sat on top of him, but he woke up and told her to go to her room. Mr. Lewis then fell back asleep, and the next thing he remembered was feeling K.F. performing fellatio on him for a “split second.” He rolled away from her and fell back asleep, while K.F. presumably left his room.
{18} Mr. Lewis’ defense was not that K.F. merely consented2 to the fellatio, but rather that she performed it on him without his knowledge while he was asleep, making any role of his in the act completely involuntary. Thus, the other-acts evidence that Mr. Lewis received two hand jobs from K.F. in the past was relevant and admissible not to show his propensity to commit sexual offenses against minors, but to negate his explanation for how his penis wound up in K.F.‘s mouth, which was a material issue in dispute. Compare Hartman at ¶ 56 (discussing a Montana case where other-acts evidence was permissible not to show a propensity to capture elk but to negate the explanation for how the elk came to be on the defendant‘s farm). As the Supreme Court explained in Hartman, the permissible inference in this situation is that “the oftener a like act has been done, the less probable it is that it could have been done innocently.” Id., quoting State v. Evers, 139 Wis.2d 424, 437 (1987), quoting 2 Weinstein & Berger, Weinstein‘s Evidence, Section 404[12], at 404-84 to 404-87 (1985).
{19} Next, we cannot say that the trial court abused its discretion in deciding that the probative value of the other-acts evidence was not substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. See
{20} Mr. Lewis’ first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
APPELLANT LEWIS WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW BY THE TESTIMONY AT TRIAL PRESENTED BY THE STATE OF INTERNET COMMUNICATIONS WITHOUT THE ESTABLISHMENT OF A PROPER FOUNDATION.
{21} In his second assignment of error, Mr. Lewis argues that plain error occurred when the proper foundation was not laid for witness testimony regarding electronic messages. We disagree.
{22} A trial court‘s decision to admit or exclude testimony is typically reviewed for an abuse of discretion. State v. Green, 9th Dist. Summit No. 29120, 2019-Ohio-4967, ¶ 18. See also State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus (“The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.“). A party‘s failure to object to testimony on the basis that it lacked the necessary foundation, however, results in the forfeiture of all but plain error. State v. Reye, 9th Dist. Lorain No. 15CA010770, 2016-Ohio-3495, ¶ 11. Mr. Lewis never objected to any testimony on these grounds, so he concedes that he is limited to arguing plain error on appeal.
{23} “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
{24} “Before evidence may be admitted, it must be authenticated or identified sufficiently ‘to support a finding that the matter in question is what its proponent claims.‘” State v. Hoffmeyer, 9th Dist. Summit No. 27065, 2014-Ohio-3578, ¶ 18, quoting
{25} Here, Y.F. testified that she discovered inappropriate messages between Mr. Lewis and K.F. when she went through Mr. Lewis’ phone. She then used the phone to continue messaging K.F. as if she were Mr. Lewis and soon learned that K.F. had performed fellatio on Mr. Lewis. The State only sought to introduce one printed page of the voluminous Instagram messages between Mr. Lewis and K.F. that were extracted from the phone, but the trial court did not admit it into evidence. No copies of any other electronic messages were introduced and admitted.
{26} Mr. Lewis argues that it was plain error for the trial court to permit testimony regarding the messages because copies of the electronic messages were never introduced and admitted at trial. But, assuming without deciding that the trial court erred in permitting this testimony, Mr. Lewis cannot establish plain error because he has not demonstrated that he was unfairly prejudiced as a result of the testimony. See State v. Knight, 9th Dist. Wayne No. 15AP0019, 2016-Ohio-8505, ¶ 14. See also State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459,
{27} At the tail end of this assignment of error, Mr. Lewis briefly claims for the first and only time: “Being able to confront your accuser is a Sixth Amendment right as guaranteed by the United States Constitution. Lewis was denied that right in this case.” Although Mr. Lewis mentions the Confrontation Clause here, he develops no argument explaining how his right to confront witnesses was violated, e.g., he does not argue that the electronic messages were testimonial in nature or that he was denied the opportunity to cross-examine those who created and
{28} Mr. Lewis’ second assignment of error is overruled.
ASSIGNMENT OF ERROR THREE
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHICH DENIED HIM A FAIR TRIAL IN VIOLATION OF THE UNITED STATES AND OHIO CONSTITUTIONS.
{29} In his third assignment of error, Mr. Lewis argues that his trial counsel was ineffective for failing to object to (1) testimony regarding electronic messages, (2) still photographs taken from body cams videos, and (3) other-acts evidence. We disagree.
{30} “The Sixth Amendment guarantees a criminal defendant the right to the effective assistance of counsel.” State v. Liu, 9th Dist. Summit No. 24112, 2008-Ohio-6793, ¶ 22. “[I]n Ohio, a properly licensed attorney is presumed competent.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland v. Washington, 466 U.S. 668, 689 (1984). Moreover, even debatable trial tactics will not constitute ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 49 (1980). To prove ineffective assistance of counsel, one must establish that: (1) his counsel‘s performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland at 687. Counsel‘s performance is deficient if it falls below an objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus.
{31} Mr. Lewis first argues that trial counsel was ineffective for failing to object to “numerous instances” of testimony concerning electronic messages. Specifically, he notes Y.F.‘s testimony that she learned through electronic messaging with K.F. about “some type of sexual interaction, which was oral sex from [K.F.] to [Mr. Lewis].” He also notes different points during Detective Sutton‘s testimony, in which he testified that: (1) he reviewed the extraction of Mr. Lewis’ phone; (2) Y.F. said she had text messages from Mr. Lewis’ phone; (3) he confirmed “that” with the information from the phone extraction; (4) he found information on Mr. Lewis’ Instagram page that confirmed some of K.F.‘s statements, including the amount of money ($150.00) that was to be exchanged between the two; (5) K.F. stated that Mr. Lewis agreed to hold onto the $150.00 for her to avoid suspicion from her mother, with the intent to give it to her when she needed it, which corroborated part of the investigation.
{32} “[T]his Court has consistently held that ‘trial counsel‘s failure to make objections falls within the realm of trial tactics and does not establish ineffective assistance of counsel.‘” State v. Bradford, 9th Dist. Summit No. 22441, 2005-Ohio-5804, ¶ 27, quoting State v. Taylor, 9th Dist. Lorain No. 01CA007945, 2002-Ohio-6992, ¶ 76. In fact, “[a] competent trial attorney might well eschew objecting * * * in order to minimize jury attention to the damaging material.” State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, ¶ 90, quoting United States v. Payne, 741 F.2d 887, 891 (7th Cir. 1984). As we have already determined, the information within the messages was not necessary for the State to obtain a conviction in this matter, and overwhelming other evidence was
{33} Next, Mr. Lewis argues that trial counsel was ineffective for not objecting to the introduction of various still photographs captured from the police officers’ body cam videos showing Mr. Lewis holding his hands out as if preparing to be handcuffed, and then putting his hands behind his back, again presumably to be handcuffed. He contends that the photos were both prejudicial and cumulative because they indicate an admission of guilt and were taken from videos already viewed by the jury. These photographs indicate at most, however, only that Mr. Lewis assumed he was being taken into police custody, which is a far cry from an admission of guilt to a crime. The jury viewed the body cam footage and heard testimony from those present that day, which provided ample context for the photos and revealed that Mr. Lewis not only did not admit any guilt, but he barely spoke at all and did not answer any police questions. When one of the officers was asked during the viewing of the body cam videos in court what the “hands out, hands behind the back” signified, defense counsel‘s immediate objection was sustained. While the photos were indeed captured from body cam footage already in evidence, the mere fact that the photos are cumulative of the video footage does not result in prejudicial error, absent a level of gruesomeness or shock value not at issue here. See State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-
{34} Finally, Mr. Lewis argues that trial counsel was deficient in failing to renew her motion in limine to exclude the other-acts evidence and in not continuing to object to the other-acts testimony at trial to preserve the argument for appeal.
{35} Mr. Lewis’ third assignment of error is overruled.
III.
{36} Mr. Lewis’ first, second, and third assignments of error are all overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
NATHAN A. RAY, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.